Moila v City of Tshwane Metropolitan Municipality (76403/2010) [2015] ZAGPPHC 908 (18 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

18/12/15

CASE N0:76403/2010

In the matter between:

LUCAS MOILA PLAINTIFF

and

THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY DEFENDANT

JUDGMENT

RANCHOD J

Introduction

[1] The plaintiff instituted action against the defendant, a municipality which provides inter alia, electricity and water to consumers within its jurisdiction, on the basis that the defendant has overcharged him, has debited the incorrect account, has charged plaintiff for amounts that are not due and owing by him and that all amounts due and owing by him have been paid.

[2] The plaintiff claims the defendant is obliged to provide him-

'regularly, and not less than monthly, with a full and accurate account in respect of the proper charges levied by the defendant to the plaintiff in respect of the property.'

[3] Accordingly, the plaintiff seeks an order:

(a) That the defendant be ordered to render to the plaintiff within 30 days from date of the order a true and proper statement of account together with substantiating documents reflecting the correct charges, levies, and amounts levied against the plaintiff in respect of the property for the period August 1998 to date;

(b) That the defendant be ordered to debate the aforesaid with the plaintiff within 30 days from the time it was rendered in terms of paragraph (a) above;

(c) That it be declared that the plaintiff is not indebted to the defendant in any sum whatsoever in respect of the property;

(d) That the defendant be ordered to pay the costs of this action;

(e) Further and/or alternative relief.'

[4] During argument, the issues that crystallized for determination were first whether the defendant is obliged to provide a statement of account in addition to the monthly invoices or account rendered, secondly, whether a debatement of the account should take place as claimed by the plaintiff.

The background

[5] The plaintiff is a businessman who is the registered owner of an immovable property in Mamelodi Township within the municipal area of the Tshwane Metropolitan Municipality.

[6] It appears that the plaintiff became the registered owner of the property during 1998 jointly with his wife. His wife died in 2003 and he says all his wife's rights passed to him by virtue of succession and accordingly he is the only registered owner of the property.

[7] The plaintiff claims that defendant has, inter alia, incorrectly charged him for amounts due by the previous owner of the property and overcharged him (the plaintiff) as well. Plaintiff further alleges that the defendant incorrectly transferred amounts owing by the previous owner to him and his wife notwithstanding that there was no agreement with the defendant and the previous owner to that effect. The defendant cut off the electricity and water supply to the property -it appears- in August 2010 due to alleged arrear amounts owing by the plaintiff.

[8] The plaintiff then launched an urgent application dated 31 August 2010, seeking, inter alia , that the defendant restore the supply of water, electricity and other services to the premises.

[9] The application served before Kollapen AJ (as he then was) who granted an interim interdict on 15 November 2010 that the services be restored to the premises pending the institution of an action by the plaintiff. The plaintiff then instituted action seeking the relief set out in paragraph [3] above.

[10] According to the minutes of a pre-trial conference held on 16 July 2015 the plaintiff recorded that on 6 July 2015 he received a comprehensive statement of account, as requested in the particulars of claim but that 'no source documents were received.'

[11] It is further recorded that plaintiff was of the view that 'the account has to be debated between parties before the Court can be approached for a debatement of the account'. Hence, it was noted, plaintiff was of the view that the matter was not ripe for hearing on the trial date (30 July 2015). As there was insufficient time to debate the account, the trial should be postponed and costs reserved.

[12] The defendant disagreed with plaintiffs contentious and wanted the matter to proceed on 30 July 2015 on the pleadings as they stood. Insofar as the limited time between the pre-trial conference and the trial date was concerned, the defendant had discovered the relevant documents in its discovery affidavit prior to the first trial date which was in June, 2013. Hence defendant contended the plaintiff had ample time to request copies of the defendant's discovered documents.

[13] A final aspect from the pre-trial conference which is of relevance to the proceedings before me is that the defendant contended that due to the relevant by-laws applicable to the underlying cause of action, the onus was on the plaintiff to prove his case. Plaintiff contended that as there had to be a debatement of accounts at this stage only postponement and costs arguments should take place. The matter proceeded before me for determination of the plaintiff's and defendant's respective contentions.

[14] Plaintiff's argument was that the defendant admitted in its plea that it was obliged to render accounts at least monthly to the plaintiff. The defendant has thus admitted the plaintiff's cause of action and the right to receive accounts hence, debatement of accounts should follow as they were disputed.

[15] Defendant contended that there is a difference between an account and a statement of account. The plaintiff was provided the monthly invoices (accounts) and that is what defendant admitted to in its plea. The defendant, so it was submitted, had no obligation to provide any statement of account nor was it obliged to enter into a debatement of account. In this regard, defendant's counsel, Mr Vorster, referred me to certain sections of the Local Government Municipal Systems Act 32 of 2000 (the Act) and several decided cases to which I now turn.

[16] Section 95 of the Act provides:

'Customer care and management - In relation to the levying of rates and other taxes by a municipality and the charging of fees for municipal services, a municipality must, within its financial and administrative capacity-

(e) ensure that persons liable for payments, receive regular and accurate accounts that indicate the basis for calculating the amounts due;

(f) provide accessible mechanisms for those persons to query or verify accounts and metered consumption, and appeal procedures which allow such persons to receive prompt redress for inaccurate accounts.'

Section 102 provides:

"Accounts - (1) A municipality may--

(a) consolidate any separate accounts of persons liable for payments to the municipality;

(b) credit a payment by such a person against any account of that person; and

(c) implement any of the debt collection and credit control measures provided for in this Chapter in relation to any arrears on any of the accounts of such a person.

(2) Subsection (1) does not apply where there is a dispute between the municipality and a person referred to in that subsection concerning any specific amount claimed by the municipality from that person.'

[17] The plaintiff pleaded as follow in his particulars of claim in paragraph 7:

7.1. The defendant is in law obliged to provide the plaintiff regularly, and not less than monthly, with a full and accurate account in respect of the proper charges levied by the defendant to the plaintiff in respect of the property.

7.2. Without derogating from the generality of the aforesaid, the defendant is expressly alternatively tacitly further alternatively impliedly, contractually, obliged, in terms of a written contract alternatively an oral contract further alternatively a contract which is partly in writing and partly oral, concluded at Pretoria during or about 1998, to provide the plaintiff regularly, and not less than monthly, with a full and accurate account in respect of the proper charges levied by the defendant to the plaintiff in respect of the property.

7.3. The plaintiff is not in possession of the aforesaid written contract and/or the written part of the contract, and the defendant is in possession thereof.

7.4. In addition to alternatively in the alternative to paragraph 7.2 hereof, the defendant is in a fiduciary relationship with the plaintiff and accordingly obliged to provide the plaintiff regularly, and not less than monthly, with a full and accurate account in respect of the proper charges levied by the defendant to the plaintiff in respect of the property.

7.5. The fiduciary relationship between the plaintiff and the defendant arises from the scope and exercise of the discretion and/or power of the defendant to levy charges to the plaintiff in respect of the property, the fact that the discretion and/or power that can be and/or is used unilaterally to affect the plaintiff's interests and rights, and the plaintiff's vulnerability to the exercise of the aforesaid discretion and/or power.

7.6. Without derogating from the generality of the aforesaid paragraph 7.5 the defendant unilaterally levies charges in respect of the property, and the manner of calculating such charges does not fall within the knowledge of the plaintiff.'

[18] It is apparent that the plaintiff pleads a contractual alternatively (or in addition) a fiduciary relationship with the defendant - as the supposed basis for seeking a statement of account and debatement thereof. In Absa Bank (Bpk) v Janse van Rensburg[1] it was held:

"In elk geval verskil ek oak met die Hof a quo se bevinding dat die respondent in beginsel geregtig was om op die lewering en debatering van 'n rekeningstaat aan te dring. Dit is gemene saak dat die respondent op 'n gereelde grondslag bankstate ontvang het en daar is nooit aangevoer dat die inligting daarin vervat in enige opsig ontoereikend was nie. Ten einde met sy aanspraak op debatering van hierdie rekening te slaag moes die respondent aantoon 6f dat (a) hy en die appellant in 'n vertrouensverhouding tot mekaar gestaan het; of dat (b) die appellant horn kontraktueel daartoe verbind het; 6f dat (c) daar 'n statutere verpligting op die appellant gerus het om 'n rekening te verskaf en daaroor debat te voer. (Sien byvoorbeeld Rectifier and Communications Systems (Pty) Ltd v Harrison1981 (2) SA 283 (K) op 289H.)"

[19] It is apparent from the Absa judgment that in order to claim a statement of account and debatement thereof the plaintiff must prove either (a) the existence of a fiduciary relationship between him and the defendant; or (b) that the defendant contractually bound itself thereto; or (c) the existence of a statutory duty obliging the appellant to deliver and debate an account.

[20] Plaintiff's counsel, Mr Jacobs, contended that the defendant admitted that it had a contractual duty to provide a statement of account and accordingly, debatement thereof. However, as will be apparent from a careful reading of paragraph 7 of the particulars of claim ( supra) what is sought are monthly accounts. The defendant admitted to a contractual relationship to provide (at least) monthly accounts. It cannot on that basis be concluded that it admitted to provide a statement of account and debatement thereof.

[21] Plaintiff also alleged that in addition to a contractual relationship or in the alternative, defendant had a fiduciary relationship with the plaintiff. The allegation is couched in rather inelegant terms. Plaintiff seems to plead that there was a contractual relationship, alternatively a fiduciary one or both a contractual and fiduciary relationship. But in any event it is of no moment here as what is sought even on the alternative grounds is delivery of accounts.

[22] The Absa Bank case as the name suggests, was a matter relating to a bank and its client where the latter sought a statement of account and debatement thereof in respect of the client's current account with the bank. Mr Vorster submitted that a municipality is an administrative body and thus the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) were applicable. I was referred to Joseph and Others v City of Johannesburg and Others[2] a Constitutional Court decision where it was held that where a local authority decided to terminate the electricity supply to tenants in a block of flats their rights were materially and adversely affected by the disconnection. The matter, it was held, was governed by administrative law. Hence, the decision to terminate the electricity supply was an administrative action. As I understand it, the relationship is an administrative one - not contractual- nor, by implication, is it a fiduciary relationship. That leaves the question of a statutory requirement to provide statements of account and debatement thereof.

[23] The Act does not make provision for such a requirement. Section 95 (e) supra merely provides that the municipality must provide regular and accurate accounts (s 95 (e) of the Act supra). Subsection 95 (f) (supra) provides that where a consumer wishes to query or verify accounts the local authority must provide 'accessible mechanisms' to enable the consumer to do so. It must also provide appeal procedures 'which allow such persons to receive prompt redress for inaccurate accounts.' The Act, in other words provides for an appeal mechanism within the local authority. Nowhere in the pleadings does the plaintiff allege that he has exhausted the internal appeal procedure. Section 102(1)(c) and 102(2) (supra) provide that where there is a dispute regarding a specific amount then the municipality may not implement debt collection or credit control measures to such disputed amount. In other words a remedy is provided for in the legislation. The plaintiff has not availed himself of the remedy.

[24] In my view, the plaintiff should first exhaust his internal remedies before launching an application for judicial review in terms of the Promotion of Adminitrative Justice Act 3 of 2000, neither of which he has done. No purpose would be served in postponing the matter any further.

[25] In conclusion, the plaintiff has not proved that he is entitled to a (statement of) account or debatement thereof. It follows that plaintiff is not entitled to the relief he seeks.

[26] I make the following order:

1. The application by the Plaintiff for a postponement of the matter and an order that the defendant provide a statement of account and debatement thereof is refused with costs.

2. The interim interdict issued on 15 November 2010 under case number 49613/10 is discharged.

3. The action is dismissed with costs including the costs of the urgent application on 15 November 2010 under case number 49613/2010.

__________________

RANCHOD

JUDGE OF THE HIGH COURT

Appearances:

Counsel on behalf of Plaintiff: Adv Jacobs

Instructed by: Morris Pokroy Attorneys

Counsel on behalf of Defendant: Adv Vorster

Instructed by: Hugo & Ngwenya Inc

Date heard: 30 July 2015

Date delivered: 18 December 2015

[1] 2002 (3) SA 701 (SCA) at para [15].

[2] 2010 (4) SA 55 (CC).